Madras High Court
Dhavamani (Died) ... 1St vs M.Somasundaram on 30 September, 2024
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
S.A(MD)No.2146 of 2003
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.09.2024
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.2146 of 2003
1.Dhavamani (died) ... 1st Appellant/Appellant/defendant
2.K.Ravichandran ... 2nd Appellant/
Lr of the deceased 1st appellant
(A – 2 is brought on record as Lr of the deceased
first appellant vide order dated 15.02.2019 made
in C.M.P(MD)Nos.878 to 880 of 2018)
Vs.
1.M.Somasundaram
2.Suseela (died) ... Respondents 1 & 2/
Respondents 3 & 4/Plaintiffs 3 & 4
3.Manivel
4.Kannadhasan
5.Kayalvizhi ... Respondents 3 to 5/
Lrs of the deceased 2nd respondent
(R – 3 to R – 5 are brought on record as Lrs of the
deceased second respondent vide order dated
12.09.2019 made in C.M.P(MD)No.6734 of 2018)
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 04.12.2002 made
in A.S.No.93 of 2002 on the file of the Additional District Court cum
Fast Track Court No.1, Thanjavur, confirming the judgment and decree
dated 24.03.2000 made in O.S.No.157 of 1993 on the file of the
District Munsif Court, Thiruvayyaru.
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S.A(MD)No.2146 of 2003
For A – 2 : Mr.V.K.Vijayaragavan
For RR 1 & 3 to 5 : Mr.PT.S.Narendra Vasan
JUDGMENT
The Judgment and decree passed in O.S.No.157 of 1993 on the file of the District Munsif Court, Thiruvayyaru and in A.S.Nos.93 of 2002 on the file of the Additional District Court cum Fast Track Court No.1, Thanjavur, are being challenged in the present Second Appeal.
2.One M.Samuthirarajan, Mariammal, along with the respondents 1 and 2 as plaintiffs instituted a suit in O.S.No.157 of 1993 on the file of the trial Court for the relief of permanent injunction as against the defendant.
3.For the sake of convenience, the parties are referred to as, as described before the trial Court.
4.According to the plaintiffs, the suit property measuring 0-66 cents out of 1 acre 26 cents absolutely belongs to the plaintiffs. 2/18 https://www.mhc.tn.gov.in/judis S.A(MD)No.2146 of 2003 The first plaintiff has purchased the suit property under a registered sale deed dated 09.07.1992 for a valuable consideration of Rs.18,500/-. After purchase, the first plaintiff had constructed his residential house in the suit property and he had also got an electricity connection. The house tax has been assessed in the name of the first plaintiff and he has paid the house tax. In the remaining extent of the suit property, the first plaintiff had raised plantain crops and there were about 200 plantains in the suit property aged two months. Apart from the plantains, the first plaintiff had also raised and reared coconut saplings in the suit property. Thus, the first plaintiff was in absolute possession and enjoyment of the suit property and the first plaintiff had been paying the kist for the suit property. The defendant has no manner of right over the suit property after he has sold the same to the first plaintiff and he was duly put in possession of the suit property. The defendant wanted a loan of Rs.20,000/- from the first plaintiff, for which, he expressed his inability to advance any loan to the first defendant. On the application of the first plaintiff, the Firka surveyor Papanasam Taluk came to the suit property to measure and subdivide the suit survey number. But the defendant did not permit him to carry out his work stating that she had to verify the extent sold to the first plaintiff. On 12.03.1993, the defendant and her men made an attempt 3/18 https://www.mhc.tn.gov.in/judis S.A(MD)No.2146 of 2003 to trespass into the suit property and her attempt was thwarted by the plaintiffs with the help of the neighbours. Hence, it is just and necessary for the first plaintiff to file the suit for permanent injunction restraining the defendant from in any manner interfering with the plaintiffs' peaceful possession and enjoyment over the suit property. While the suit was pending, the first plaintiff died leaving behind the second plaintiff as his only legal heir and the second plaintiff was impleaded in the suit. While so, the second plaintiff also died leaving behind the plaintiff's 3 and 4 as her legal heirs and they were impleaded as the plaintiffs 3 and 4 in the suit. Hence, the plaintiffs have filed the said suit for the abovestated relief.
5.The defendant had filed a written statement denying the allegation that the suit property belongs to the plaintiffs and the first plaintiff has purchased the same for valuable consideration of Rs. 18,500/- under the registered sale deed, dated 09.07.1992 and stated that the defendant has filed a suit for adjudging the document dated 09.07.1992 and registered as Document No.627 of 1992 of the Sub- Registrar's office, Thiruvaiyaru as null and void, unenforceable, invalid under law and cancelling the same and for recovery of vacant possession. The first plaintiff has filed the suit for a permanent 4/18 https://www.mhc.tn.gov.in/judis S.A(MD)No.2146 of 2003 injunction against the defendant suppressing the fact that already suit has been filed by the defendant before the Sub Court, Thanjavur. The defendant never sold the suit property in favour of the first plaintiff. The alleged sale deed is invalid and it has no legal force. In the entire 1 acre 26 cents, there are several kinds of trees standing, but the first plaintiff who claims to have purchased 66 cents out of which, the alleged sale deed did not say anything with regard to the standing trees. No consideration was passed as alleged in the plaint. The defendant never intended to execute a sale deed in favour of the plaintiff. It was represented that the document was only an Othi deed. But fraudulently, the first plaintiff without disclosing the recitals of the alleged sale deed obtained the signature of the defendant. The defendant without knowing the contents and character of the document, she had put her signature. The alleged sale deed has never come into force. The first plaintiff was not in possession and enjoyment of the suit property as alleged in the plaint. There was no valid sale deed executed by the defendant. All along, the defendant was under
the impression that she had executed an Othi deed for 1 acre measuring 21 X 41. The allegation that the first plaintiff had raised the plantain crops was false. The plantain crops were raised only by the defendant. For the coconut trees and other trees including the plantain 5/18 https://www.mhc.tn.gov.in/judis S.A(MD)No.2146 of 2003 crops, the plaintiff cannot claim any ownership over it. Even if any patta is granted, it would not bind the defendant. The allegation that the defendant wanted a loan of Rs.20,000/- from the first plaintiff was false. There was no demand for the loan by the defendant. The defendant herself was in possession and enjoyment of the suit property, except the hut. No such occurrence has taken place on 12.03.1993 as alleged in the plaint. The plaintiff was not entitled to any relief as claimed in the plaint and prayed for dismissal of the suit.
6.Before the trial Court, on the side of the plaintiffs, the deceased second plaintiff was examined as P.W.1 and one Kathiresan was examined as P.W.2 and Exs.A1 to A8 were marked. On the side of the defendant, she herself was examined as D.W.1 and one Krishnamoorthy was examined as D.W.2 and Exs.B.1 to B.6 were marked.
7.On the basis of the rival pleadings made on either side, the trial Court, after framing necessary issues and after evaluating both the oral and documentary evidence, has decreed the suit. 6/18
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8.Aggrieved by the Judgment and decree passed by the trial Court, the defendant herein as appellant, had filed an Appeal Suit in A.S.No.93 of 2002 on the file of the first Appellate Court.
9.The first Appellate Court, after hearing both sides and upon reappraising the evidence available on record, has dismissed the appeal and confirmed the Judgment and decree passed by the trial Court.
10.Challenging the said Judgments and decrees passed by the Courts below, the present Second Appeal has been preferred at the instance of the defendant as appellant.
11.At the time of admitting the present second appeal, this Court had framed the following substantial questions of law for consideration:
'i.When the respondents had filed a suit for
permanent injunction and when the title of the
respondents to the suit property was questioned by the 7/18 https://www.mhc.tn.gov.in/judis S.A(MD)No.2146 of 2003 appellant, was it correct for the Courts below to declare the title of plaintiffs on the basis of Exhibit A-1 when the plaintiff did not seek amendment of plaint for declaration of title? and ii.When the plaintiffs suit is only for permanent injunction in respect of suit property against the appellant, was it tenable for the Courts below to hold that the plaintiff's possession was lawful when suit for declaration of title was not filed by the plaintiffs?'
12.The learned counsel appearing for the appellant/defendant would submit that the Courts below have erred in declaring the title of the respondents on the basis of Ex.A.1. The appellant had contended that her signature in the sale deed was obtained fraudulently and under a mistaken, identity of the document as an Othi deed; that the appellant had subscribed her signature in Ex.A.1 and therefore, the Courts below should not have rendered a finding on the basis of Ex.A.1, her validity of Ex.A.1 should be considered or affirmed for granting the relief to the respondents as prayed for; the Courts below have erred in holding that the possession of the suit property by the respondents was lawful and the Courts 8/18 https://www.mhc.tn.gov.in/judis S.A(MD)No.2146 of 2003 below have erred in placing reliance on the documents filed by the respondents viz., patta, kist receipt, EB connection etc., when they are all only followup documents to Ex.A.1 and prayed for allowing the Second Appeal.
13.The learned counsel appearing for the respondents/plaintiffs would submit that the first plaintiff has purchased the suit property from the defendant under Ex.A.1-sale deed. In Ex.A.1, it was clearly mentioned that the defendant has conveyed the suit property measuring to an extent of 66 cents out of 1 acre 26 cents in S.F.No.321/4 in Ganapathi Agraharam Village, within the four boundaries mentioned in Ex.A.1.
14.Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents 1 & 3 to 5 and also perused the records carefully.
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15.According to the plaintiffs, the suit property measuring 0-66 cents out of 1 acre 26 cents absolutely belongs to the plaintiffs. The first plaintiff has purchased the suit property under a registered sale deed dated 09.07.1992 for a valuable consideration of Rs. 18,500/-. After purchase, the first plaintiff had constructed his residential house in the suit property and he had also got an electricity connection. The house tax has been assessed in the name of the first plaintiff and he has paid the house tax. In the remaining extent of the suit property, the first plaintiff had raised plantain crops and there were about 200 plantains in the suit property aged two months. Apart from the plantains, the first plaintiff had also raised and reared coconut saplings in the suit property. Thus, the first plaintiff was in absolute possession and enjoyment of the suit property and the first plaintiff had been paying the kist for the suit property. The defendant has no manner of right over the suit property after he has sold the same to the first plaintiff and he was duly put in possession of the suit property. The defendant wanted a loan of Rs.20,000/- from the first plaintiff, for which, he expressed his inability to advance any loan to the first defendant. On the application of the first plaintiff, the Firka surveyor Papanasam Taluk came to the suit property to measure and sub-divide the suit survey number. But the defendant did not permit him to carry 10/18 https://www.mhc.tn.gov.in/judis S.A(MD)No.2146 of 2003 out his work stating that she had to verify the extent sold to the first plaintiff. On 12.03.1993, the defendant and her men made an attempt to trespass into the suit property and her attempt was thwarted by the plaintiffs with the help of the neighbours.
16.According to the defendant, she has filed a suit for adjudging the document dated 09.07.1992 and registered as Document No.627 of 1992 of the Sub-Registrar's office, Thiruvaiyaru as null and void, unenforceable, invalid under law and cancelling the same and for recovery of vacant possession. The first plaintiff has filed the suit for a permanent injunction against the defendant suppressing the fact that suit has already been filed by the defendant before the Sub Court, Thanjavur. The defendant never sold the suit property in favour of the first plaintiff. The alleged sale deed is invalid and it has no legal force. In the entire 1 acre 26 cents, there are several kinds of trees standing, but the first plaintiff who claims to have purchased 66 cents out of which, the alleged sale deed did not say anything with regard to the standing trees. No consideration was passed as alleged in the plaint. The defendant never intended to execute a sale deed in favour of the plaintiff. It was represented that the document was only an Othi deed. But fraudulently, the first plaintiff without disclosing the recitals 11/18 https://www.mhc.tn.gov.in/judis S.A(MD)No.2146 of 2003 of the alleged sale deed obtained the signature of the defendant. The defendant without knowing the contents and character of the document, she had put her signature. The alleged sale deed has never come into force. The first plaintiff was not in possession and enjoyment of the suit property as alleged in the plaint. There was no valid sale deed executed by the defendant. All along, the defendant was under
the impression that she had executed an Othi deed for 1 acre measuring 21 X 41. The allegation that the first plaintiff had raised the plantain crops was false. The plantain crops were raised only by the defendant. For the coconut trees and other trees including the plantain crops, the plaintiff cannot claim any ownership over it. Even if any patta is granted, it would not bind the defendant. The allegation that the defendant wanted a loan of Rs.20,000/- from the first plaintiff was false. There was no demand for a loan by the defendant. The defendant herself was in possession and enjoyment of the suit property, except the hut. No such occurrence has taken place on 12.03.1993 as alleged in the plaint.
17.On perusal of the materials available on record, it is seen that the defendant has deposed in her evidence that she has not signed the sale deed, after reading the document. On perusing the oral 12/18 https://www.mhc.tn.gov.in/judis S.A(MD)No.2146 of 2003 evidence adduced on both sides, it is clearly proved that the first plaintiff Samuthirarjan, obtained the sale deed after paying sufficient sale consideration to the defendant. The defendant failed to prove through sufficient evidence that Ex.A.1-sale deed is invalid as against the evidence adduced on the side of the plaintiffs. After Ex.A.1-sale deed, the ownership of the suit property was transferred in favour of the plaintiffs. During the lifetime of the first plaintiff, he constructed a hut in the suit property and joint patta to an extent of 0.51.5 ares in S.F.No.321/4 in patta No.368 was issued in favour of Dhavamani and the first plaintiff, since the first plaintiff has purchased 0.26.5 acres, out of 0.51.5 acres in S.F.No.321/4 from Dhavamani. Hence, it is clearly proved that Ex.A.2 joint patta was not cancelled. The enjoyment of the plaintiffs regarding 60 cents is proved through Ex.A.1-sale deed. The plaintiffs have proved that they have got a transfer of patta in their names, constructed a house in the suit property, they are enjoying the remaining property by paying kist and proved their possession.
18.Further, on perusal of the materials available on record, it is seen that the defendant has received sufficient sale consideration for the suit property and handed over the absolute possession of the suit property to the first plaintiff. In Ex.A.2, it is clearly mentioned that 13/18 https://www.mhc.tn.gov.in/judis S.A(MD)No.2146 of 2003 since the first plaintiff has purchased 0.26.5 ares from the defendant, patta for the land to an extent of 0.51.5 ares in S.F.No.321/4 in patta No.368, the name of the first plaintiff is ordered to be included as joint pattadars. On perusal of Exs.A.3 to A.6, it is clearly proved that the plaintiffs have paid electric consumption charges for the electric service connection in the house bearing Door No.3/152B in the suit property. After the purchase of suit property in Ex.A.1, the first plaintiff paid kist to the suit property under Ex.A.7. The defendant filed Ex.B.1- cultivation adangal for fasli 1405 to show that she is in the cultivation of the total extent of 0.51.5 ares in S.F.No.321/4. After the execution of Ex.A.1-registered sale deed and after the patta transfer order, for joint patta in the names of Thavamani and the first plaintiff with reference to the entire extent of 0.51 acres in S.F.No.321/4, as against Ex.A.1 and Ex.A.2, the defendant has not filed any document to prove her case as against the case of the plaintiffs. After Ex.A.1-sale deed, no sufficient document has been filed on the side of the defendant to prove that she has been in absolute possession of the entire extent of 0.51.5 ares in S.F.No.321/4.
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19.Though in Ex.B.1, it is shown that during the fasli 1405, the defendant was in the cultivation of the entire extent of 0.51.5 ares, she has not filed sufficient and valid documents to prove that the defendant is in possession and enjoyment of the suit property, after the execution of Ex.A.1 and Ex.A.2. Admittedly, the plaintiffs are in possession and enjoyment of the house bearing D.No.3/152B in the suit property and they were given possession and enjoyment of the suit property to an extent of 66 cents as per Ex.A.1-sale deed. Furthermore, no document is filed on the side of the defendant to get the transfer of possession from the plaintiffs, after the execution of Ex.A.1. Hence, it is clear that the plaintiffs are in possession and enjoyment of the suit property as per Ex.A.1-sale deed by paying kist to the suit property and electric consumption charges to the house in the suit property. Regarding the second question of law, if it is necessary, the Court can mould and issue a Judgment regarding the title.
20.The defendant has not let in any evidence to show that she has not executed the sale deed, but admitted an 'Othi deed' has been converted into a sale deed. Further, the defendant claims that the Registrar did not even look into her and he simply signed the same is 15/18 https://www.mhc.tn.gov.in/judis S.A(MD)No.2146 of 2003 not proved by letting appropriate evidence to show that the said document was not read over to her. When the defendant has not clarified with the same from the Registrar, now she cannot claim the same. Further, the defendant failed to proved that she has not parted with the property and she herself stated that the plaintiffs have trespassed into the property, constructed a house. However, the house tax receipts, EB connection and kist are issued in favour of the plaintiffs.
21.From the above, this Court is of the view that the Judgments and Decrees of the Courts below are accompanied with sufficient reasons, in which, this Court does not want to make any interference. Accordingly, the substantial questions of law framed are ordered as against the defendant and in favour of the plaintiffs.
22.In the result, the Second Appeal stands dismissed. No costs.
30.09.2024
(1/2)
Index : Yes/No
Internet : Yes/No
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S.A(MD)No.2146 of 2003
To
1.The Additional District Court cum Fast Track Court No.1, Thanjavur.
2.The District Munsif Court, Thiruvayyaru.
3.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.
17/18 https://www.mhc.tn.gov.in/judis S.A(MD)No.2146 of 2003 V.BHAVANI SUBBAROYAN, J.
ps Judgment made in S.A(MD)No.2146 of 2003 30.09.2024 (1/2) 18/18 https://www.mhc.tn.gov.in/judis